Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1377 OF 2019
IN
S.C. SUIT NO.8662 OF 1998
M/s. Gavade Finance Pvt. Ltd. … Plaintiff
V/s.
M/s. Sai Consultancy & Ors. … Defendants
Appearances :
Ld. Adv. Mangaonkar for plaintiff.
Ld. Adv. Hiral Bhatia for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 07th SEPTEMBER, 2019
ORDER
Defendant has taken out this notice of motion for setting
aside no argument order dated 13.02.2019 and permit him to put his
arguments.
2. It is argued on behalf of defendant that as per order dated
04.01.2019 in notice of motion no.3438/2018, he was allowed to
advance argument on payment of cost of Rs.3,000/. He has paid the
cost and accordingly matter was listed on 14.01.2019 for his arguments.
On that day his Ld. Counsel ready with argument. However, the
Presiding Officer was on leave and therefore matter was adjourned to
13.02.2019 for his argument. However, in between 12.02.2019 to
MHCC01003541201 9
-- 1 of 4 --
NM 1377/2019 .. 2 .. Suit No.8662/1998
16.02.2019 the Ld. Counsel for defendant was suffering from severe
back pain and was under treatment. Therefore on 13.02.2019 he could
not remain present before the Court for argument. Adjournment
application Exh33 filed on behalf of defendant is rejected and matter
was listed for judgment. The delay is not intentional. Because of
ailment of Ld. Counsel he could not argue the matter. It is necessary to
give fair chance to defendant to advance his argument. Accordingly,
defendant prayed for setting aside impugned order dated 13.02.2019
with liberty to argue the matter.
3. The Ld. Counsel for plaintiff has resisted the application. It
is his submission that on 06.04.2017 evidence of defendant was closed
and since 20.04.2017 matter was listed for argument. On majority
dates defendant has sought adjournment. Ld. Counsel for plaintiff has
filed notes of arguments on 03.10.2017. Even then defendant went on
seeking adjournments. For twice cost was imposed for such
adjournments. Even then defendant went upon to seek adjournments in
order to delay the matter. Already ample chances are given to
defendant. Therefore, there in no reason to allow the notice of motion.
4. It is a matter of record that on 06.04.2017 evidence of
defendant is closed and from 20.04.2017 matter was listed for
argument. Roznama shows that on most of dates defendant has sought
adjournment. Once matter was finally argued before the Presiding
Officer. However because of change in assignment matter was again
listed for reargument. For twice adjournments were granted to
defendant on cost of Rs.1,000/ and 3,000/ respectively. At last on
13.02.2019 matter was posted without argument of defendant.
-- 2 of 4 --
NM 1377/2019 .. 3 .. Suit No.8662/1998
5. As such record shows that on most of dated defendant has
sought adjournment on one or other ground. On majority occasions his
prayer was granted while twice cost was imposed. This notice of
motion is relating to impugned order dated 13.02.2019. In that regard
it is the case of defendant that from 12.02.2019 till 16.02.2019 his Ld.
Counsel was under treatment. Said contention is corroborated by
medical certificate. Therefore there is no reason to doubt the
contention made by defendant about ailment of his Ld. Counsel. As far
as possible matter must be decided on merit by giving full and fair
opportunity to the parties. Therefore, I am of opinion that one last
chance has to be given to defendant to advance the argument.
However, considering the delay certain cost can be imposed. With this I
proceed to pass the order.
ORDER
1. NM No.1377/19 in SU No.8662/98 is hereby allowed.
2. No argument order dt. 13.02.2019 against defendant is
hereby set aside on cost of Rs.5,000/ to be paid to the
plaintiff or to deposit it in the Court on or before next date.
3. On compliance of cost order defendant is at liberty to
advance his argument.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 07/09/2019 City Civil Court, Gr. Mumbai
Dictated on : 07.09.2019
Transcribed on : 07.09.2019
Signed on : 07.09.2019
sbk/
-- 3 of 4 --
NM 1377/2019 .. 4 .. Suit No.8662/1998
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07.09.2019 03.40 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
07.09.2019.
Judgement/order signed by P.O on 07.09.2019.
Judgement/order uploaded on 07.09.2019.
-- 4 of 4 --